Citation NR: 9725966
Decision Date: 07/28/97 Archive Date: 08/06/97
DOCKET NO. 96-31 711A ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Salt Lake City, Utah
THE ISSUES
1. Entitlement to restoration of a 30 percent evaluation for
post-traumatic stress disorder (PTSD).
2. Entitlement to an evaluation in excess of 10 percent for
PTSD.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. Wm. Thompson, Counsel
INTRODUCTION
The veteran was born in April 1947, and had active military
service from August 1965 to September 1969. His personnel
records and DD 214 show that his primary duty was motor
vehicle operator, he served two tours in Vietnam, and he and
received a Purple Heart Medal for a fragment wound to the
left leg in July 1966.
This claim was certified to the Board as entitlement to an
increased evaluation for PTSD, currently rated 10 percent
disabling. By rating action in May 1987, service connection
was granted for PTSD and a 30 percent evaluation was
assigned. This claim arose when, following VA examination in
January 1996, there was a March 1996 proposal to reduce the
30 percent evaluation for PTSD to 10 percent. In May 1996
there was a rating determination that reduced the service-
connected PTSD from 30 percent to 10 percent. A July 1996
action confirmed the 10 percent rating, and the Hearing
Officer's February 1997 decision also confirmed the 10
percent evaluation for PTSD.
The claim before the Board includes a restoration issue, and
an increased rating issue. A restoration claim involves a
determination that an improvement in the disability actually
occurred, and that the improvement actually reflects an
improvement in the veteran’s ability to function under the
ordinary conditions of life and work. The veteran has been
provided the laws and regulations for restoration and
increased rating, and both issues are before the Board at
this time.
REMAND
The Board points out that the Supplemental Statement of the
Case (SSOC), issued in February 1997, provided a recitation
of the rating criteria for a psychoneurotic disorder as in
effect prior to November 7, 1996, to include discussion of
Hood v. Brown, 4 Vet.App. 301 (1993). The schedular criteria
for evaluation of psychiatric disabilities were changed
effective November 7, 1996. Where a law or regulation
changes after a claim has been filed or reopened, but before
the administrative or judicial appeal process has been
concluded, the version most favorable to an appellant applies
unless Congress provided otherwise or permitted the Secretary
to otherwise and the Secretary does so. Marcoux v. Brown, 9
Vet.App. 289 (1996); Karnas v. Derwinski, 1 Vet.App. 308
(1991). Thus the veteran’s psychiatric disorder must be
evaluated under both the old and the new rating criteria to
determine which version is most favorable to the veteran.
Inasmuch as this may or may not have impact on the
restoration issue, and for the reasons noted below, the Board
will defer adjudication of the restoration issue pending
further development.
In regard to the claim for an increased rating as well as the
restoration issue, the Board notes that there are diagnoses
of a personality disorder and drug and alcohol abuse as well
as PTSD of record. A service-connected psychiatric rating
may be authorized only to the extent that any current
maladjustment is shown to be the result of a service-
connected disability alone. An analysis of the degree of
social and industrial impairment requires evaluation of the
veteran's entire psychiatric status, including his underlying
personality and the existence of other psychiatric pathology,
and specific designation that the manifestations of the
service-connected disorder are the basis for the rating
assigned. If a personality disorder or another acquired
psychiatric disorder (apart from drug or alcohol abuse) co-
exists with PTSD, the adjudicators and the Board must attempt
to secure medical evidence that indicates the relationship,
if any, between the disorders, and that permits the
distinguishing of manifestations of the service connected
pathology and the nonservice connected pathology, or which
indicates that distinguishing the manifestations is not
feasible. Waddell v. Brown, 5 Vet.App. 454 (1993).
Moreover, with respect to drug or alcohol abuse the attention
of the RO is respectfully directed to the January 16, 1997,
precedent opinion of the General Counsel concerning service
connection, and thus the award of compensation, for the abuse
of alcohol or drugs following the changes enacted in
38 U.S.C.A. §§ 1110, 1131 by the Omnibus Budget
Reconciliation Act of 1990, Pub. L. No. 101-508, § 8052, 104
Stat. 1388, 1388-351. (VAOPGCPREC 2-97.) As the precedent
opinion makes clear, the law now prohibits the payment of
compensation for a disability that is the result of alcohol
or drug abuse on any claim filed after October 31, 1990, even
if the claim for compensation is on the basis that a service
connected disability caused the alcohol or drug abuse. To
the extent the factual record permits, this statutory
prohibition must be observed.
A review of the record also indicates that further medical
opinion evidence may be appropriate in another connection.
Generally, the veteran has maintained fairly regular
employment, largely in construction. His employment, if
steady, is also characterized by the fact that he has changed
jobs numerous times. The rating criteria recognize that the
ability to overcome handicap varies widely among individuals,
and specifically points out that the rating criteria are
based upon average impairment in earning capacity due to
service connected disability, and not from individual success
in overcoming handicap. 38 C.F.R. § 4.15 (1996).
In view of the following, this case is remanded for actions
as follows:
1. The veteran should be permitted to
submit additional argument or evidence
and to identify any other relevant
evidence in support of his claim.
Evidence identified should be obtained by
the RO.
2. The RO should then take appropriate
action to have the veteran undergo a VA
psychiatric examination. It is
imperative that the examiner have
available a copy of this remand and the
veteran's entire claims file for review
in conjunction with the examination. The
purpose of the examination and review of
the record is to ascertain the nature and
severity of all psychiatric pathology, to
determine the relationship, if any,
between any disorders found to be
present, and to distinguish, to the
extent feasible, between manifestations
of disorders due to service or the
service-connected disability and
manifestations due to nonservice
connected disorders or the abuse of
alcohol or drugs. Any indicated testing
should be accomplished. Following the
examination, any necessary testing and a
review of the record, the examiner is
requested to address the following:
(a) If there are psychiatric disorders
present apart from PTSD, the examiner is
requested to provide an opinion as to
the degree of medical probability that
there is a causal relationship, if any,
between any other disorder and service
or the service-connected PTSD. If there
are psychiatric disorders present that
are not causally related to service or
to service-connected PTSD, the examiner
is requested to provide an opinion as to
whether the manifestations of the
nonservice connected disorder may be
distinguished from manifestations
related to the service-connected
disorders. If such distinctions are not
feasible, the examiner should so
indicate.
(b) The examiner should identify the
level of functional impairment
associated with the veteran’s service-
connected PTSD and any other psychiatric
disorder caused by PTSD or service,
particularly as it would affect the
industrial adaptability of the average
person experiencing those
manifestations. In this regard, the
examiner should not place undue emphasis
on the appellant’s work record as
evidence of his individual success in
overcoming handicap, but should consider
the findings and history in terms of an
average person with such disability.
However, in accordance with the law, the
examiner must attempt to the maximum
feasible extent not to consider
manifestations related to drug or
alcohol abuse, even if drug or alcohol
abuse is due to PTSD or service. In
this regard, the examiner should assign
a Global Assessment of Functioning (GAF)
score under the Diagnostic and
Statistical Manual of Mental Disorders,
Fourth Edition (DSM-IV) and define the
meaning of the numerical score assigned,
to assist the RO and the Board to comply
with Thurber v. Brown, 5 Vet.App. 119
(1993).
The veteran is advised that failure to
report for the scheduled examination may
have adverse consequences to his claim
as the information requested on this
examination addresses questions of
causation and symptomatology that are
vital in these claims. Moreover, under
38 C.F.R. § 3.655 (1996), where a
claimant fails without good cause to
appear for a scheduled examination in
conjunction with a claim for increase,
the claim will be denied. Connolly v.
Derwinski, 1 Vet.App. 566 (1991).
4. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
foregoing development actions have been
conducted and completed to the extent
possible.
5. The RO should then evaluate the
service-connected disorder under the
revised schedular criteria, and determine
whether the revised or the former
schedular criteria is more favorable to
the appellant, and rate him under the
most favor criteria as to entitlement to
a current increased rating. With respect
to the revised criteria, and the
definition of any GAF score provided by
the examiner, the RO should assure that
the veteran and his representative are
provided with copies of the criteria and
the definition of the GAF score either in
a Supplemental Statement of the Case, if
required, or any other method the RO
chooses that assures that the record will
contain documentation that such notice
was provided.
If any benefit sought remains denied, the case should then be
returned to the Board for further appellate consideration.
By this action, the Board intimates no opinion legal or
factual as to the ultimate determination warranted.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
RICHARD B. FRANK
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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